Understanding How Abstention Votes Impact Public Boards

Apr 17, 2019

Children are often taught there are two answers to certain questions: yes or no. That’s not the case for elected officials, who have the ability to abstain from a vote on any given topic for any number of reasons. Often, the reason for an abstention vote is given; just as often, it is not.

That was the circumstance last week when William Fenimore, LBI Consolidated Board of Education president, abstained from a vote to move the district one step closer to rehabbing the LBI Grade School. The board failed to garner a majority of the votes on a motion to give Frank Little, a principal of Owen, Little and Associates of Beachwood, the authority to begin involving the state Department of Education in the improvement project.

“Historically, there has been a certain amount of confusion in New Jersey regarding the effect of an abstention by a (school) board member,” John E. Coot Jr., a partner with Adams Gutierrez and Lattiboudere, said in a column for the New Jersey School Boards Association. “The confusion likely arises because in some situations involving public school districts, an abstention does have the effect of a ‘no’ vote. For instance, if a measure must pass by a majority of the full membership of the board, a specified number of affirmative votes is required for a motion to pass (for example, five votes for a nine-member board). In that case, an abstention would have the same effect as a ‘no’ vote.”

Still, Coot said Robert’s Rules of Order, generally considered to the standard set of rules to run orderly meetings, is clear on the subject of abstention votes. The rules, first published in 1876 by Henry M. Robert, considers the phrase “abstention vote” an oxymoron because it’s not a vote at all, according to Coot.

“Robert’s notes that in a situation where a simple majority vote is required, abstentions have no effect on the outcome because what is required is a majority of the votes cast,” he said, adding that in 2011 the New Jersey Law Review Commission recommended legislation to clarify the matter. The Appellate Division of Superior Court upheld Robert’s Rules in saying abstentions are neither for nor against an item and should not be counted as votes at all.

Under Robert’s Rules, when a quorum is present, a majority vote is sufficient to approve any motion unless otherwise determined by a statute, administrative code, board policy or bylaw. Robert’s also disqualifies individuals from voting on a question from which they would benefit personally.

One phrase – Doctrine of Necessity – changes that, according to Coot.

“In some circumstances, a board may be able to invoke the doctrine of necessity to allow conflicted members to vote. In order to invoke the doctrine, a board must pass a resolution setting forth that they are invoking the doctrine, the reason for doing so, and the nature of the board member conflicts,” Coot said in his column “Taking Action: A User’s Guide to School Board Voting,” available on the organization’s website. “The resolution must be read at a public meeting, posted for 30 days, and a copy sent to the New Jersey School Ethics Commission. However, the circumstances under which the doctrine may be invoked are quite limited.”

— Gina G. Scala

ggscala@thesandpaper.net

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